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Constitutional History of India 1773 - 1947 Ad Semester - V, Academic Year 2020-21

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Constitutional History of India 1773 - 1947 Ad Semester - V, Academic Year 2020-21 STUDY MATERIAL FOR B.A HISTORY CONSTITUTIONAL HISTORY OF INDIA 1773 - 1947 AD SEMESTER - V, ACADEMIC YEAR 2020-21 UNIT CONTENT PAGE Nr I THE REGULATING ACT 03 II CHARTER ACT 09 III THE INDIAN COUNCILS ACT 20 IV MONTAGUE CHELMSFORD REFORMS 26 V CONSTITUTIONAL DEVELOPMENT BETWEEN 1935-1947 31 Page 1 of 43 STUDY MATERIAL FOR B.A HISTORY CONSTITUTIONAL HISTORY OF INDIA 1773 - 1947 AD SEMESTER - V, ACADEMIC YEAR 2020-21 UNIT - I THE REGULATING ACT 1773 Regulating Act, 1773 The territorial acquisitions of the East India Company produced a startling effect in England. The public in General clamored for an immediate Parliamentary intervention. Two parliamentary Committees were appointed to enquire into the affairs of Fast India Company. The servants of the Company were concentrating on their private trade. The trade of the Company was being neglected. The Company has almost forgotten about trade and was progressively thinking in terms of conquering more and more land. This needed large armies. Hence more expenditure. This greed for land very often brought the Company in armed conflict with native powers. This meant a heavy loss to the Company. Change in the texture of the Company The employees of the Company were given low salaries but they were allowed to carry on private trade. The result was that the employees concentrated on their private trade and became rich. The Company’s trade started dwindling. Pitiable condition of the People The guiding principle for the employees of the Company was to make money. The effect of this anarchical tendency was that people of India suffered the entire suffering. The famine of 1770 further aggravated the situation and the people started groaning aloud. Defective Dual Government in Bengal During the famine of 1770 grains were hoarded by the Company’s employees and they exploited the situation to the fullest extent and sold them at staggering prices. Obviously the servants of the Company became rich as they wanted but the people were completely broken. Then Clive’s experiment of Dual Government in Bengal brought havoc. PROVISIONS OF THE REGULATING ACT The Governor of Bengal was made the Governor-General. The entire civil and military administration of Bengal was given to the Governor-General. Provision was made for an executive council of four members to assist and help the Governor-General. The Act mentioned the names of the First Governor-General and the members of his Executive Council. It said Warren Hastings would be the First Governor-General of Bengal. The four executive councilors mentioned in the Act were Philip Francis, Clavering, Monson and Bar well. Their term of office was five years but they could be removed from office earlier by the British Monarch, if the Court of Directors recommended such an action. The Governor-General could not take a decision on any matter independently. He had to act on the advice of the Councilors. Decisions were taken in the Council by majority vote. In Page 2 of 43 STUDY MATERIAL FOR B.A HISTORY CONSTITUTIONAL HISTORY OF INDIA 1773 - 1947 AD SEMESTER - V, ACADEMIC YEAR 2020-21 case of a tie the Governor-General was given a casting vote. But he could not overrule his Council. The Presidencies of Madras and Bombay were made subordinate to Bengal. The Governors-in-Council of Bombay and Madras had to follow the instructions of the Governor- General-in-Council. The Governor-General could direct control and superintend the two Presidencies. These Presidencies could neither declare war nor conclude peace with any power without the sanction of the Governor-General-in-Council. The employees of the Company were forbidden to accept any bribes or gifts from anybody. If it was a serious matter they could be sent back to England, as a matter of punishment. The Governor-General-in-Council could make rules and regulations and issue ordinances for the good government of the Company’s territories. These rules, regulations and advice were to be registered with the Supreme Court of India, which was created by the Act. Without registration these rules and regulations had no effect or meaning. Supreme Court A Supreme Court was established by the Regulating Act, The Supreme Court was given jurisdiction over all the British subjects living in Bengal, Bihar and Orissa. The Supreme Court was empowered to try ecclesiastical, admiralty, civil and criminal cases. The case was decided on the basis of judgment of the Jury. The Supreme Court had original as well as appellate jurisdiction. The Supreme Court was to be a Court of Record. Any contempt or disrespect shown to its orders would be a punishable offence. The Governor-General, the members of the Executive Council, the Judges, Collectors, and Inspectors, their agents or servants all were forbidden to carry on private trade of any description. No gifts would be accepted by these officers from the Indian Princes or people. Provisions for Home Authorities Before the passage of the Regulating Act the Directors of the Company were elected for a short term of one year. Directors of the Company were elected by the Court of Proprietors. This system was extremely defective. The Directors were busy throughout their term of one year either obliging their supporters of the previous election or preparing others for the coming election. The Regulating Act did a good job by making the Court of Directors a permanent body. The Act required the Governor-General of Bengal and the Governors of the Presidencies of Bombay and Madras to pay due obedience to the orders of the Directors in London. It was the first measure by which a European government assumed the responsibility for governing territories acquired by it outside Europe and inhabited by civilized people. The Act also attempted to eradicate corruption and bribery by making several provisions. One among them was the establishment of the Supreme Court. This Court could punish offenders. Acceptance of gifts and presents etc. was forbidden. Demerits or Defects of the Act ➢ The Regulating Act was full of grave defects. ➢ The jurisdiction and powers of the Supreme Court were not properly defined. The results were very ugly. One often witnessed dirty conflicts of jurisdiction between the Page 3 of 43 STUDY MATERIAL FOR B.A HISTORY CONSTITUTIONAL HISTORY OF INDIA 1773 - 1947 AD SEMESTER - V, ACADEMIC YEAR 2020-21 Supreme Court and other Courts of Calcutta. ➢ The Regulating Act did not specify the jurisdiction and power of the Governor-General- in-Council or the Judges of the Supreme Court. ➢ The relations between the Supreme Court and other courts of the Company were not specified. ➢ The Presidencies of Madras and Bombay were subordinated to Bengal and the Governor-General-in-Council was given power to superintend and control the management and government of the two Presidencies. Defects of Act No Veto power to the Governor-General The act granted no veto power to the Governor General. He was to act according to the advice of the majority in the council. Since he could not veto the decision of his councilors, he was thus powerless before his colleagues. We know that till up to 1776 warren Hastings was invariably out-voted and over-rules by the majority of the Councilors who were against him. Consequently, warren Hastings had a difficult time when he came face to face with his councilors. Appointment of hostile Councilors Another flaw associated with the above defect was that the Councilors, Francis, Monson and Cleaving named by the Parliament were entirely unfit for the job. Such a batch of Councilors still weakened the position of the Governor-General who was already suffering from constitutional impotency. Provisions of Supreme Court Obscure and defective In the second place, the provisions relating to the jurisdiction of the Supreme Court were “Obscure and defective”. They said nothing about the jurisdiction of the Court, the law it had to administer and its relation to the Governor - General – in-Council. The fundamental questions lacked clarity and precision. For instance, the Act did not clearly say as to who were to be the British subject within the meaning of the Charter of the Supreme Court. The Sphere of law that the Court was to administer was equally undefined The court did not know whether it was to administer native law or English law. Even the Chief justice was baffled by this anomaly. Similarly, relations between the court and the Council were not clearly defined. It was not clear how far the Supreme Court could question the legality of the orders issued by the governor-General-in-Council. No Supreme legislative authority The act provided no supreme legislative authority nearer than England to mediate in the dispute of these two bodies and to mark the proper sphere of the Executive and Judicial Departments. The vagueness of the clauses was further increased owing to the fact that the regulations of Bengal made by the Council were subject to the court. Inadequate Control of Governor-General over the presidencies In the third place, the inadequate control of the Governor-General over the presidencies was glaring defect of the Act. The authority of the Governor-General in Council over the Presidencies was not fully effective due to the exceptions in the Act. The Presidencies acted at their own discretion on the plea of emergency and thus started wards and made alliances without reference to the Governor-General in Council as was done by the Bombay Government Page 4 of 43 STUDY MATERIAL FOR B.A HISTORY CONSTITUTIONAL HISTORY OF INDIA 1773 - 1947 AD SEMESTER - V, ACADEMIC YEAR 2020-21 and Madras Council in the case of Marathas and Hider Ali, respectively.
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